Opinion
Cr.A. No. IK00-05-0525 and IK00-07-0320
Submitted. February 14, 2001
Decided. March 26, 2001
Upon Consideration of Defendant's Motion, For Early Production of Jencks Act Material DENIED.
Robert J. O'Neill, Jr., Esq., Attorney for the State.
Charles E. Whitehurst, Esq., Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for early production of Jencks Act Material, the state's response, and the record, it appears that:
1. The defendant is charged with Unlawful Sexual Contact in the Second Degree and Rape in the Fourth Degree. The alleged victim was approximately eight years old at the time of the alleged offenses. According to documents in the file, she did not report the alleged abuse until approximately two years after it occurred. The defendant has filed a motion asking the Court to order the State to produce, prior to trial, any statement made by any person who will be testifying at trial. This would include a videotaped interview of the alleged victim conducted by members of the Milford Children's Advocacy Center. According to the motion, this is a "repressed memory" case in which the interview technique used by the people at the advocacy center will be of "paramount importance." The defendant contends that he needs the interview of the child in advance of trial in order to have the interview technique examined by an expert retained by him. He further contends that his right to a fair trial as guaranteed by the fifth, sixth and fourteenth amendments to the United States Constitution will be abridged if he is not provided with the videotape prior to trial. However, significant provisions in the Court's criminal rules expressly provide that statements of witnesses called by the State be provided to the defendant at trial, not before trial.
2. It is well established that the State's duty to produce Jencks material does not arise until the witness is tendered for cross-examination at trial. Rule 26.2 specifically provides that a witness' statement is to be produced on motion after the witness has testified on direct examination. In addition, statements by State witnesses or prospective State witnesses are expressly not subject to discovery under Rule 16.
Hooks v. State, Del. Supr., 416 A.2d 189 (1980); Gardner v. State, Del. Supr., 567 A.2d 404 (1989); Lance v. State, Del. Supr., 600 A.2d 337 (1991); State v. Christine, Del. Super., IN91-09-1557, thru IN91-09-1559 and IN91-09-1728, Herlihy, J. (Jun. 16, 1995) (Mem. Op.). If the State wishes to offer the witness' prior statement into evidence under 11 Del. C. § 3507, it must do so before the conclusion of the witness' direct examination. Smith v. State, Del. Supr., 669 A.2d 1 (1995).
3. THEREFORE, the defendant's motion for early production of Jencks Act material is denied.
IT IS SO ORDERED.